Evidence

Question 1

Statement Against Interest

Answer 1

1. Declarant unavailable
2. Statement was against their interests at the time they made it
3. They knew it was

If against penal interests, it must be supported by corroborating evidence

Question 2

Dying Declaration

Answer 2

1. Declarant unavailable
2. Made statement while death was impending
3. Statement re: circumstances of death

Can only be used in civil/homicide case

Question 3

Statement for Medical Diagnosis/Treatment

Answer 3

If statement was made to a doctor that is being paid to testify, it is inadmissible in MI, but admissible on the MBE

Question 4

Past Recollection Recorded

& how is it entered into evidence?

Answer 4

1. Witness has insufficient recollection, but had personal knowledge at a prior time
2. They made/adopted the statement while the event was fresh in their memory, and
3. They can attest for the accuracy of the statement

• If admitted, witness reads the statement into evidence
• Writing is NOT admitted unless offered by OP

Question 5

Business Records Exception

Answer 5

1. Record made in the regular course of business,
2. At or about the time the event occurred,
3. Containing information witnessed by employees or otherwise falling into a hearsay exception

Question 6

MI: Statement by DV Victim

Answer 6

1. Statement made within 5 years of filing the current case, by a victim to an officer,
2. Describing the defendant’s infliction/threatened infliction of physical injury, at or near the time of the infliction/threat, and
3. Circumstances indicate its trustworthiness

NOTE: Remember the 6A Confrontation Clause

Question 7

MI: Statement by child victim of sexual act

Answer 7

Immediately after incident, or delayed by fear, describing sexual act, child is under 10 when they made the statement, and the statement corroborates the kid’s in-person testimony

OP must get notice of the statement

Question 8

Scope of Cross-Examination

Answer 8

1. Matters within scope of direct
2. Matters affecting witness credibility

In MI, you do not need to stay within scope of direct

Question 9

Scope of Leading Questions

Answer 9

Permitted on cross

Only allowed on direct to:

1. Develop preliminary matters,
2. Help young/forgetful witnesses, or
3. Hostile witness/OP

Question 10

Is evidence relevant? Is it admissible?

Answer 10

Relevant: It can make a fact of consequence more or less probable than it would be without it.

Admissible: Relevant evidence is admissible unless:

1. It is excluded by statute or a rule
2. Its probative value is substantailly outweighed by its prejudicial effect.
   - This test favors admission
   - Prejudicial effect can include things like undue delay, confusing the issues, misleading the jury, needless cumulative evidence, etc.

Question 11

Authenticating a Phone Call

Answer 11

To Person: the circumstances show that the person answering is the one who called.
- Look for self-identification, language patterns, or person disclosing knowledge that they had.

To Business: Call related to a business reasonably transacted over the phone

Question 12

Authenticating an Ancient Document

Answer 12

1. Condition of document creates no suspicion about its authenticity
2. Document found in a place where, if authentic, it would likely be
3. Document is at least 20 years old

Question 13

Self-Authenticating Documents

Answer 13

1. Official publications (books, pamphlets, etc.)
2. Newspapers
3. Business records with sworn declaration
4. Notarized documents
5. Certified copies of public records
6. Trade inscriptions (labels, signs, tags)
7. Commercial papers

Question 14

Best Evidence Rule

Answer 14

You must present documentary evidence to prove the contents of a writing in two situations:

1. The writing is a legally operative document; or
2. The witness learned of the event solely from the writing and had no independent knowledge of the events

A duplicate of the original document is admissible to the same extent as the original unless:

1. Genuine question re: its authenticity
2. It would be unfair (i.e., part is cut off)

Question 15

BER: When is an original document not required?

Answer 15

1. Lost or destroyed w/o bad faith
2. Cannot be obtained by any judicial process
3. Not closely related to a controlling issue

Question 16

Witnesses: Lay vs. Expert

Answer 16

Lay witnesses testify based on personal knowledge.

Expert witnesses are qualified by their skill or qualifications.

An expert can testify to opinion or otherwise if it is helpful to the trier of fact and based on sufficient information. This means that their opinion can be based on:

1. Personal knowledge of the facts
2. Facts in the record known to them
3. MBE: Facts not in the record that another expert would rely on (not in MI).

Question 17

Excluding Witnesses from Courtroom

Answer 17

At party’s request, the court must exclude nonparty witnesses so they do not hear witness testimony. Court cannot exclude:

1. Party
2. Person whose presence is essential to presenting the party’s claim/defense
3. Someone authorized by statute to be there

Question 18

Impeachment: Ways to impeach

Answer 18

1. Prior inconsistent statement
2. Bias
3. Prior conviction
4. Deficiency in senses
5. Prior bad act
6. Reputation or opinion of trustworthiness
7. Contradiction

Question 19

Impeachment: Prior inconsistent statement

Answer 19

They made a statement inconsistent with their testimony.

• Must confront in order to use extrinsic evidence. UNLESS:
  1. They are OP
  2. They are not in the court at all
  3. The interests of justice require it

Question 20

Impeachment: Conviction (MBE)

Answer 20

1. Felony/Misdemeanor where dishonesty or false statement is part of the crime
2. Felony convictions

Defendant witness: Probative value must outweigh prejudicial effect

Non-defendant witness: Excluded if the probative value is substantially outweighed by prejudicial effect

Conviction/date of release must be within last 10 years.

Question 21

Impeachment: Conviction (MI)

Answer 21

1. Felony/Misdemeanor where dishonesty or false statement is part of the crime
2. Felony convictions for theft crimes (robbery, larceny, etc.)

Probative Value:

• Look at age of conviction (more recent, more probative)
• Extent that crime indicates truth-telling

Defendant witness: Probative value must outweigh prejudicial effect

• Consider similarity of prior conviction to this charge (more similar, more prejudicial)
• Might be prejudicial if it would lead defendant to refuse to testify

Conviction/date of release must be within last 10 years.

Question 22

Impeachment: Specific Acts

Answer 22

Must be acts that indicate truthfulness.

Extrinsic evidence cannot be used

Question 23

Impeachment: Reputation/Opinion for Untruthfulness

Answer 23

Through character witnesses.

Cannot testify to specific acts.

Question 24

Impeachment: Contradiction

Answer 24

Can impeach someone who lied or made a mistake on direct exam.

• If they admit it, they are impeached
• If they deny it, you can use extrinsic evidence as long as it is not a collateral fact

Question 25

Character Evidence: Civil Case

Answer 25

Can be used if character is an essential element of the case (child custody, negligent hiring/entrustment, defamation). Can use specific acts, reputation, or opinion

Question 26

Character Evidence: Criminal Case

Answer 26

Defendant opens the door with reputation or opinion evidence that he acted in accordance with a pertinent trait. Prosecutor can cross to impeach those witnesses with specific acts. Prosecutor can call own witnesses to testify as to reputation/opinion to contradict defendant's witnesses.

Question 27

Character Evidence: Self-Defense Cases

Answer 27

Defendant may introduce victim's violent character to prove he acted in accordance with it (as initial aggressor). - Reputation or opinion only Prosecutor can rebut with reputation or opinion of either: - Victim's character for peacefulness - Defendant's character for violence MICHIGAN: Defendant can only bring up the victim's violent character in criminal homicide cases.

Question 28

Character Evidence: Homicide Cases

Answer 28

Prosecutor can offer evidence of victim's peacefulness to rebut evidence that he was the first aggressor. - Can be specific acts, reputation, or opinion

Question 29

Character Evidence: Victim's Sexual Disposition

Answer 29

Civil: Only if victim put it in controversy (and probative value substantially outweighs prejudicial effect). Criminal: Evidence to prove victim engaged in other sexual behavior to prove their sexual disposition is inadmissible unless: 1. Offered to prove defendant was not source of the semen/injury 2. Defendant had consent 3. It would violate defendant's constitutional rights

Question 30

Character Evidence: Defendant's Prior Sexual Misconduct

Answer 30

If accused of sexual assault or molestation, the court can admit evidence of any other sexual assault or molestation. - Must be specific acts (not reputation/opinion) Prosecution must disclose intent to introduce it and the statements (or a summary) at least 15 days before trial, or later with good cause.

Question 31

Character Evidence: MI Domestic Violence

Answer 31

Evidence of past DV can be offered with at least 15 days' notice before trial. - If longer than 10 years, it is likely inadmissible - Only specific acts - Still subject to 403

Question 32

Character Evidence: Sex Offense Against Minor

Answer 32

Evidence of past acts can be offered with at least 15 days' notice before trial. - Only specific acts - Still subject to 403

Question 33

Habit/Routine

Answer 33

Habit: regular response to particular situation Habit can be offered to prove a person acted in accordance with it. - Does not need to be corroborated. - This is different than character evidence.

Question 34

Other Crimes/Bad Acts

Answer 34

Cannot be used to prove propensity. Can be used to prove MIMIC. - Motive: evidence to show there was a motive to do something - Intent: ex: prior molestation to show they knew the person in this case was a child - Mistake: evidence to show it was not a mistake - Identity: evidence to show you knew who it was - Common Scheme: ex: evidence you stole a car to help rob the bank Must give notice of intent to use MIMIC. - Just need a reasonable juror to be able to conclude prior bad act occurred - Still must pass 403

Question 35

Privileges: Spousal Immunity

Answer 35

Protects marriages at time of trial. - Crim cases - Held by witness spouse - Parties must be married at time of trial, but not when communication was made MI: Applies in civil and criminal cases. - In civil: held by party against whom spouse will testify.

Question 36

Privileges: Confidential Communications

Answer 36

Protects confidential communications during marriage. - Civil and criminal - Held by both spouses - Parties must be married at time of communication, but not at trial. MI: For criminal cases, only the witness spouse holds it.